Orissa High Court
Prasannajit Nayak vs State Of Odisha .... Opp. Party on 9 February, 2022
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.1167 of 2022
Prasannajit Nayak .... Petitioner
Mr. Sidhartha Das, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. Ashok Kumar Parija,
Advocate General
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 09.02.2022 01. This matter is taken up through Hybrid
Arrangement (Video Conferencing/Physical Mode).
Heard Mr. Sidhartha Das, learned counsel for the petitioner and Mr. Ashok Kumar Parija, learned Advocate General appearing for the State of Odisha.
This is an application under section 438 of Cr.P.C. for grant of anticipatory bail to the petitioner in connection with C.T. Case No.102 of 2022 arising out of Jakhapura P.S. Case No.06 of 2022 pending in the Court of learned J.M.F.C., Jajpur Road for alleged commission of offences under section 379 of the Indian Penal Code read with section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereafter the 'M.M.D.R. Act').
// 2 // During course of argument, learned counsel for the petitioner submitted that the ingredients of the offence under section 21 of the M.M.D.R. Act are not attracted in the factual scenario and moreover, such offence is triable by the Special Court but no Special Court has yet been constituted in the State of Odisha.
The Registry was asked to get information as to whether any Special Court has been constituted in the State of Odisha in view of section 30B of the M.M.D.R. Act and the answer was in negative.
Learned Advocate General was requested yesterday to remain present today to assist this Court during the hearing of this anticipatory bail application and he graciously assisted this Court.
A recent Three Judge Bench decision of the Hon'ble Supreme Court in the case of Pradeep S. Wodeyar -Vrs.- State of Karnataka reported in (2022) 85 Orissa Criminal Reports (SC) 477 dealt with different provisions of the M.M.D.R. Act.
In paragraph no.44, it is held as follows:
"44. It needs to be determined if condoning the irregularity of the cognizance order under Section 465 would lead to a 'failure of justice'. In our considered opinion, it would not lead to a failure of justice for the following reasons:
xxx xxx xxx
Page 2 of 15
// 3 //
(iii) Objective of the MMDR Act : The appellants are accused of the commission of offences under the MMDR Act involving the export and transportation of minerals without permit. Offences under the MMDR Act are environmental crimes. These crimes impact upon society at large. These offences cause a detriment to and affect the well-being of the entire community.
Environmental crime is not confined within geographical or state limits. The impact of environmental crime transcends borders and time.
Environmental crime may or may not have an immediately identifiable human victim but there can be no mistaking its consequence for the entire bio-system of which human beings are an intrinsic, but not the only, element. Environmental crime is in essence a planetary crime - it affects every component of the natural systems with which the planet has been endowed. They constitute our heritage; a heritage which is held in trust by the present for the future. Illegal mining Page 3 of 15 // 4 // denudes the eco-system of valuable resources. The destruction of the natural environment has serious consequences for the present and the future. The MMDR Act must hence be construed in this perspective. At one level, illegal mining deprives the State of its revenues. But the law is not merely a revenue yielding or regulating measure. The essence of the law is to protect human kind and every species whose existence depends on natural resources from the destruction which is caused by rapacious and unregulated mining. The offences which have been taken into account by Parliament while enacting sub-sections (1) and (1A) of Section 4 intrinsically affect the environment which, in turn, affects the existence of communities who depend on the environment and of every species to whom it provides nurture and sustenance. It is because of the wide- ranging impact of such offences on the life of the community and on the well- being of not only the present, but of the Page 4 of 15 // 5 // succeeding generations, that principles such as the precautionary principle, the public trust doctrine and the concept of sustainable development have gained a sure jurisprudential foundation. In environmental crime, there may be no single, immediate victim. The act which predicates the offence is a crime against humanity. These crimes might not be perceived in the present to have immediate, foreseeable or quantifiable repercussions but there is no mistaking that they impact the life of future generations;
(iv) The Preamble of the Act at the time of its enactment indicated that it is an "Act for regulation of mines and the development of minerals". This was substituted by Act 38 of 1999 to emphasise that the "Act provides for the development and regulation of mines and minerals". The amendment to the Preamble is indicative of the intent of the legislature that development and regulation must proceed hand-in-hand, and in order to reduce the increasing Page 5 of 15 // 6 // magnitude of environmental crime, development needs to be regulated and sustainable. Thus, when Parliament amended the MMDR Act to include Section 30B in 2015 for the constitution of Special Courts which would be deemed to be Courts of Session conferred with all requisite powers, the object and purpose of the legislative provision must be borne in mind. The ultimate object of the provision is to ensure that violators are punished by a speedy process of trial before a Court duly constituted in that behalf."
It is further held in paragraph-56 that:
"56. In the case before us, the Special Judge took cognizance and issued summons against the appellants for offences under Sections 409, 420 read with Section 120B I.P.C.; Sections 21 and 23 read with Sections 4(1), 4(1A) of the MMDR Act; and Rule 165 read with Rule 144 of the Karnataka Forest Rules, 1969. According to the first schedule of the Cr.P.C., the offences under Sections 409 and 420 are triable by the Magistrate of the First Class. Section 209 Cr.P.C. states that if it Page 6 of 15 // 7 // appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, then he shall commit the case to the Court of Session. Section 2(hc) of the MMDR Act states that a Special Court constituted under Section 30 B(1) of the Act is deemed to be the Court of Sessions. A Special Court designated under the MMDR Act is a Court of Sessions which is exclusively vested with the power to try offences under the Act. While the offences under Sections 409 and 420 I.P.C. are triable by the Judicial Magistrate First Class, the issue is whether the offences under the I.P.C. can be tried jointly with the offences under the MMDR Act by the Special Court."
It is further held in paragraph-60 that:
"60. Therefore, on a combined reading of Sections 4 and 5 of Cr.P.C. along with Section 30C of the MMDR Act, it is apparent that the procedure prescribed under the Code shall be applicable to proceedings before the Special Court unless the MMDR Act provides anything to the contrary. These provisions incorporate the principle of express repeal - i.e., unless any provision of the Cr.P.C. is expressly repealed by the provisions of the MMDR Act, Page 7 of 15 // 8 // the procedure prescribed under the Cr.P.C. would apply to the proceedings before the Special Court. Provisions of the PC Act, POCSO Act and NIA Act which expressly provide that the Special Court may try offences under the statute along with other offences is only clarificatory. It is settled law that while contextually interpreting a provision, reference to other statutes which are pari materia can be made. [Harshad Mehta v. State of Maharashtra, (2010) 8 SCC 257]. However, since the provisions in the similar statute on combined trial are only clarificatory, the reference to external aids offer no support to the argument of the appellant."
It is further held in paragraph-66 that:
"66. Section 30B of the MMDR Act provides for the constitution of the Special Court for 'speedy trial of offences for contravention of the provisions' of Section 4 of the Act. Does the fact that the Special Court has jurisdiction to try offences under the MMDR Act oust the jurisdiction of the Special Court to try offences under any other law (in this case the I.P.C.). As has been noted above, the provisions of the Code may be held to be impliedly repealed, Page 8 of 15 // 9 // only if there is a 'direct conflict' between the provisions such that it is not possible to harmoniously interpret the provisions. It thus needs to be analysed whether Section 30B of the MMDR Act and Section 220 Cr.P.C. can be harmoniously construed."
It is further held in paragraph-67 that:
"67. The Judicial Magistrate First Class is invested with the authority to try offences under Sections 409 and 420 I.P.C. On the other hand, the Sessions Judge is appointed as a Special Judge for the purposes of the MMDR Act. If the offences under the MMDR Act and the I.P.C. are tried together by the Special Judge, there arises no anomaly, for it is not a case where a judge placed lower in the hierarchy has been artificially vested with the power to try the offences under both the MMDR Act and the Code. Additionally, if the offences are tried separately by different fora though they arise out of the same transaction, there would be a multiplicity of proceedings and wastage of judicial time, and may result in contradictory judgments. It is a settled principle of law that a construction that permits hardship, inconvenience, Page 9 of 15 // 10 // injustice, absurdity and anomaly must be avoided. Section 30B of the MMDR Act and Section 220 Cr.P.C. can be harmoniously construed and such a construction furthers justice. Therefore, Section 30B cannot be held to impliedly repeal the application of Section 220 Cr.P.C. to the proceedings before the Special Court."
It is further held in paragraph-75 that:
"75. The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173 Cr.P.C. and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta (supra). The Special Judge took note of the F.I.R., the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate that an application of mind. In the facts of this case, therefore, the order taking cognizance is not erroneous."
It is further held in paragraph-77 that:
Page 10 of 15// 11 // "77. In State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772, it was held that:
(ii) For the commission of an offence under the I.P.C., on receipt of a police report, the Magistrate having jurisdiction can take cognizance without awaiting a complaint by the authorized officer. A complaint is required in terms of Section 22 only for taking cognizance in respect of a violation of the provisions of the MMDR Act."
It is further held in paragraph-85 that:
"85. In view of the discussion above, we summarise our findings below:
(i) The Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate under Section 209 Cr.P.C. The order of the Special Judge dated 30 December 2015 taking cognizance is therefore irregular;
xxx xxx xxx
(vi) The Special Court has the power to Page 11 of 15 // 12 // take cognizance of offences under MMDR Act and conduct a joint trial with other offences if permissible under Section 220 Cr.P.C. There is no express provision in the MMDR Act which indicates that Section 220 Cr.P.C. does not apply to proceedings under the MMDR Act;
(vii) Section 30B of the MMDR Act does not impliedly repeal Section 220 Cr.P.C.
Both the provisions can be read harmoniously and such an interpretation furthers justice and prevents hardship since it prevents a multiplicity of proceedings;
(viii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise appears that the Special Judge has applied his mind to the material."
On a careful reading of the aforesaid judgment, it appears that a detailed discussion was made as to why the punishment for the offences under the M.M.D.R. Act was enhanced and why it was felt Page 12 of 15 // 13 // necessary to constitute Special Courts for trial of the offences under the M.M.D.R. Act, which relates to contravention of the provisions of sub-section (1) or sub-section (1-A) of section 4. It is also very clear that not only basing on the complaint filed by the authorized person as per section 22 of the M.M.D.R. Act, the Court can take cognizance of any offence punishable under M.M.D.R. Act or any rules made thereunder but also on a police report, which may include the offence under 21 of the M.M.D.R. Act so also the offences under the Indian Penal Code, the Special Court has got power to take cognizance of the offences and try the case.
The learned Advocate General submitted that he has obtained instruction that only ten cases under M.M.D.R. Act which relates to the Vigilance Cases are pending in the State of Odisha.
When it is pointed out that there are number of police cases in which apart from the offences under Indian Penal Code, offence under section 21 of the M.M.D.R. Act have been added and charge sheet has also been submitted and the Magistrates are also trying such offences even though section 30(B) of the M.M.D.R. Act requires the Special Court to try the offence under 21 of the M.M.D.R. Act (which is attracted when there is contravention of the provisions Page 13 of 15 // 14 // of sub-section (1) or sub-section (1-A) of section 4 of the Act) and the Special Court can try such offences along with other connected Indian Penal Code offences in view of the ratio laid down in the case of Pradeep S. Wodeyar (supra), learned Advocate General seeks one week time to apprise this Court as to how many P.S. Cases have been instituted/pending under 21 of the M.M.D.R. Act along with the offences under Indian Penal Code, particularly, in some of the districts where such offences are rampant.
As requested, list this matter along with ABLAPL No.1179 of 2022, ABLAPL No.1182 of 2022, ABLAPL No.1199 of 2022, ABLAPL No.1201 of 2022, ABLAPL No.1203 of 2022, ABLAPL No.1204 of 2022, ABLAPL No.1216 of 2022, ABLAPL No.1224 of 2022, ABLAPL No.1263 of 2022 and ABLAPL No.1265 of 2022 on 15.02.2022.
Learned counsel for the State shall obtain instruction about the criminal antecedents, if any, against the petitioner in the meantime.
Till the next date, the petitioner shall not be arrested in connection with Jakhapura P.S. Case No.06 of 2022 corresponding to C.T. Case No.102 of 2022 pending in the Court of learned J.M.F.C., Jajpur Road subject to further condition that he shall make himself available for interrogation by the Investigating Officer Page 14 of 15 // 15 // as and when required.
The file be placed before the learned Registrar Judicial shall call for a report from the learned District Judges indicating how many P.S. Cases involving offences under M.M.D.R. Act are subjudiced in their respective judgeship. The report should be furnished by 14.02.2022.
A free copy of this order be handed over to the learned Advocate General for the State of Odisha.
Urgent certified copy of this order be granted on proper application.
( S.K. Sahoo) Judge RKM Page 15 of 15